Racial justice

Buck v. Davis, which was argued in the Court earlier this week, raises a troubling question: will a person who was sentenced to death, after his trial counsel introduced evidence that his race makes him more likely to be violent, be procedurally barred from raising an ineffective assistance of counsel claim that challenges the constitutionality of that death sentence? This question is highly technical, but crucially important. At a time when the country is increasingly attentive to grievous racial bias in our criminal justice system, Buck poses a very grave threat to the public’s confidence in the fairness and integrity of the judicial process. [Disclosure: My former employer, the NAACP Legal Defense & Educational Fund, Inc., represents Mr. Buck.]

The facts of Buck alone are deeply disturbing, but the case also raises larger questions about our broader system of justice in matters of race. That this case had to wind its way all the way to the Supreme Court for the possibility of relief, now for the second time, shows how doctrinal and procedural complexities in capital litigation undermine racial justice. It also reveals how differently race is regarded in the criminal justice system when compared to standards of judicial review in civil constitutional litigation. The cavalier treatment of race by the state and lower federal courts in Mr. Buck’s case is wildly inconsistent with the Supreme Court’s interpretation of equal protection doctrine, which treats any governmental use of race as presumptively unconstitutional, regardless of motive or context. Indeed, in Fisher v. University of Texas, the Court twice heard a challenge to a university’s race-conscious admissions policy, even though race had no demonstrable impact on the university’s decision to deny admission to the white plaintiff. There is a tragic irony in the lopsidedness of this judicial scrutiny, where even the faintest consideration of race triggers close review if it threatens to disadvantage a white plaintiff, but the overtly discriminatory use of race—in a way that may have led a black man to be sentenced to death—is buried by courts in procedural technicalities.

The case has a lengthy and complicated history, but the core facts are as follows: Mr. Buck was convicted of capital murder. During sentencing, his court-appointed counsel introduced expert testimony, exploited later by the prosecution on cross-examination, that Mr. Buck was more likely to commit criminal acts of violence in the future because he is black. Let me repeat that: Mr. Buck’s own attorney inserted evidence into the sentencing proceedings that Mr. Buck’s race was a legitimate factor for assessing his proclivity for future violence. Texas juries are required to find “future dangerousness” unanimously and beyond a reasonable doubt before a defendant can be sentenced to death. There is good reason to believe that this expert testimony —which perpetuates deeply rooted racial stereotypes that black people are predisposed to violence—could have persuaded at least one Texas juror that the death sentence was justified for Mr. Buck. If the Court agrees, it could clear the path for Mr. Buck to challenge the constitutionality of that sentence. (He is not challenging his conviction.)

by Shira Scheindlin, former Senior Judge of the United States District Court for the Southern District of New York, of Counsel, Stroock & Stroock & Lavan LLP

The issue of policing arose during the recent presidential debate. This issue is one of great importance throughout the country – particularly in light of a number of recent and documented shootings by police of unarmed African American and Hispanic victims. As the former federal judge who ruled on the constitutionality of stop and frisk as used in New York City, I write to clarify a number of the misstatements or misconceptions that have tainted this debate.

Based on the evidence of racial bias presented during the 2013 trial in Floyd v. New York City, over which I presided, I found that stop and frisk – as practiced in New York – was unconstitutional. In a separate opinion, I directed a series of remedies to address the problem. It ordered very specific reforms that would result in the constitutional use of stop and frisk.

There is no question that the use of stop and frisk is permitted by the Constitution as interpreted by the United States Supreme Court in Terry v.Ohio. The Court held that a stop can be made when an officer has “reasonable suspicion” that a person has committed, is committing or is about to commit a crime. The Court later held that in order to conduct a frisk, the officer must have reasonable suspicion that a person is armed and dangerous. If a stop and frisk is done in accordance with these principles then it will pass constitutional muster.

But this is not what happened in New York, when the numbers of stops and frisks began to climb dramatically from approximately 2004 to 2012. In those years more than 4.4 million stops were made and it appears that most were not based on the required reasonable suspicion. This conclusion was reached by an examination of (1) the uncontested statistical evidence; (2) the testimony of experts who analyzed more than 4.4 million stops to determine whether there was racial bias; (3) institutional evidence of deliberate indifference (including the unconscious racial biases or indirect racial profiling exhibited by police officers) and (4) the examples of individual stops by selected plaintiffs who were members of the Floyd class.

Since discontinuing “Stop and Frisk” policies, which disproportionately target African and Latino Americans, New York City’s crime rate has decreased dramatically, reports Brentin Mock at City Lab.

Adam Liptak at The New York Times cites a new study showing criminal defendants appearing in front of the Supreme Court are less likely to have expert counsel than any other type of defendant.

J. Lester Feder and Nikki Tsukamoto Kininmonth explain in a recent article on BuzzFeed how, even after a 2003 law allowed for individuals to change their legal gender, doctors in Japan are using an antiquated and oppositional diagnosis to help Transgender people.

According to an article by Elizabeth Olson in The New York Times, the American Bar Association is considering an amendment to its model rules of professional conduct that would prohibit harassment and discrimination by practicing lawyers.

by Ronald S. Sullivan, Jr., Clinical Professor of Law and Faculty Director of the Criminal Justice Institute, Harvard Law School

This week the United States Supreme Court will consider the case of Lamondre Tucker, an African-American man who was sentenced to death in 2011―under the banner of the Confederate flag. Tucker was convicted in Caddo Parish, Louisiana, a county that is plagued by racially biased jury selection. One recent study found that African-Americans have been excluded from juries in Caddo Parish at a rate that is three times higher than whites, a practice so insidious that it has earned the nickname “blackstriking.”

An amicus brief filed by the Charles Hamilton Houston Institute for Race and Justice in Tucker v. Louisiana notes, “Of the twenty death sentences imposed in the modern era by Caddo Parish juries, fifteen were imposed on Black defendants. Of those fifteen, ten were charged with the murder of a white victim. Conversely, no white defendant has ever been sentenced to death in Caddo Parish for killing a Black victim. Taken at face value, these numbers suggest that the badges of the Confederacy adorning the courthouse entrance in Caddo Parish signify more than stale remnants of a bygone era.”

Unfortunately, Tucker’s case is not an isolated incident. Just last month, Kenneth Fults was executed by the state of Georgia despite being represented by a lawyer known for using racial slurs. Fults, an African-American man, was accused of killing a young white woman. After the trial, one of the jurors reportedly explained, "that n***r got just what should have happened . . . I knew I would vote for the death penalty because that’s what that n***r deserved."

Duane Buck’s case was equally contaminated by racial bias. Buck, an African-American man, was sentenced to death for a crime that occurred 20 years ago after a defense expert testified that Buck’s race was a relevant predictor of his future dangerousness. The prosecutor subsequently asserted that "the race factor, black, increases the future dangerousness . . ." The Texas jury sentenced Mr. Buck to death based upon the finding that he was likely to be a danger in the future. Mr. Buck has asked the U.S. Supreme Court to review his case.

Even when offered a chance to correct injustices of the not-so-distant past, many prosecutors cling to racially tainted verdicts. These cases are not relics of the past, they are evidence that racial bias continues to infect the entire capital punishment system.

The city of Cleveland recently settled a federal wrongful death lawsuit for $6 million with the estate of Tamir Rice, a 12-year-old boy shot to death by Cleveland police officers on November 22, 2014. The shooting death of Rice, along with the deaths of Eric Garner, Sandra Bland, Freddie Gray, Michael Brown, Walter Scott and too many others have led to the incisive interrogation of the police narrative in their use of deadly force, particularly in the shooting deaths of men and women of color. Not all such deaths however, have received the widespread condemnation and exposure that the deaths of Rice, et al. saw, exposure that spawned the Black Lives Matter movement.

A journalist from the San Francisco Bay area recently sent me a video taken with a police body camera from a May evening in 2014, looking for analysis, context and commentary. The video showed police officers from the city of Hayward, California as well as officers from the Bay Area Rapid Transit (BART) police attempting to take James Greer, a 46-year-old man of color and grandfather who reportedly weighed 380 pounds, into custody on suspicion of driving under the influence. Hayward police had stopped Greer’s pickup truck and administered a brief field sobriety test before making the decision to arrest Mr. Greer. An officer asked Mr. Greer if he suffered from any medical conditions and he replied that he suffered from a hernia and pointed to the area of his stomach. Greer initially cooperated with officers, but then began offering resistance that can best be described as minimal and perfunctory. As is in keeping with standard police practices that are of late far too frequently captured and memorialized via video, Greer was immediately, violently, and decisively slammed to the pavement—on his stomach.

I have seen many of these “police videos” and am frequently sought out for comment and perspective on what is depicted. What I saw in the Hayward police video was one of the most shocking, outrageous, offensive, and noxious examples of police excess that I have ever witnessed—this in a career as a police practitioner, academic, observer, and analyst that dates back to the 1970s.